Congressional Record: July 16, 2003 (Senate)
Page S9448-S9484
DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 2004
[...]
Amendment No. 1268
The PRESIDING OFFICER. All time having expired, the Senator from New
Mexico, Mr. Bingaman, is now recognized to offer an amendment on which
there shall be 40 minutes of debate equally divided in the usual form.
The Senator from New Mexico is recognized.
Mr. BINGAMAN. Madam President, I send an amendment to the desk on
behalf of myself and Senators Specter, Daschle, Byrd, Leahy, Levin,
Rockefeller, Corzine, Durbin, and Carper.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from New Mexico [Mr. Bingaman], for himself,
Mr. Specter, Mr. Daschle, Mr. Byrd, Mr. Leahy, Mr. Levin, Mr.
Rockefeller, Mr. Corzine, Mr. Durbin, and Mr. Carper,
proposes an amendment numbered 1268.
Mr. BINGAMAN. Madam President, I ask unanimous consent that further
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To require a report on the individuals being detained by the
United States Government as enemy combatants)
Insert after section 8123 the following:
Sec. 8124. (a) Report on Individuals Detained as Enemy
Combatants by United States Government.--Not later than 90
days after the date of the enactment of this Act, the
Secretary of Defense shall submit to the appropriate
committees of Congress a report on the individuals being
detained by the United States Government as enemy combatants.
(b) Elements.--Except as provided in subsection (c), the
report under subsection (a) shall set forth the following:
(1) The name and nationality of each individual being
detained by the United States Government as an enemy
combatant.
(2) With respect to each such individual--
(A) a statement whether the United States Government
intends to charge, repatriate, or release such individual; or
(B) if a determination has not been made whether to charge,
repatriate, or release such individual, a description of the
procedures (including the schedule) to be employed by the
United States Government to determine whether to charge,
repatriate, or release such individual.
(3) With respect to each such individual who the United
States Government intends to charge, the schedule for the
filing of the charges and the trial of such individual.
(c) Classification of Certain Individuals.--(1) If the
Secretary determines that the inclusion of an individual in
the report under subsection (a) would harm the national
security of the United States, the Secretary may include such
individual in a classified annex.
(2) Determinations under paragraph (1) shall be made on a
case-by-case basis.
(3) If the Secretary determines to omit one or more
individuals from the unclassified form of the report, the
Secretary shall include in the report an explanation of the
omission of the individual or individuals.
(d) Form.--The report under subsection (a) shall, to the
maximum extent practicable, be submitted in unclassified
form, but may include a classified annex.
(e) Definitions.--In this section:
(1) The term ``appropriate committees of Congress'' means--
(A) the Committees on Armed Services and the Judiciary and
the Select Committee on Intelligence of the Senate; and
(B) the Committees on Armed Services and the Judiciary and
the Permanent Select Committee on Intelligence of the House
of Representatives.
(2) The term ``enemy combatant'' means--
(A) an individual held under the authority of the Military
Order of November 13, 2001 (Volume 66, No. 222, pages 57833-
57836 of the Federal Register); or
(B) an individual designated as an enemy combatant and held
under other legal authority.
Mr. BINGAMAN. Madam President, I came to the floor two days ago to
express my concern about the administration's detention policies with
respect to three different categories of
[[Page S9452]]
individuals, and this is particularly in the period since 9/11.
One of those groups I spoke about was immigrants. There, of course,
the concern has been underscored by the report done by the inspector
general in the Department of Justice pointing out the abuses that have
been engaged in by both the Department of Justice and the FBI with
regard to immigrants after the 9/11 tragedy.
Another group I spoke about were material witnesses. There have been
several abuses there. In some cases, I think the FBI has acknowledged
that. I think, again, we have a serious issue there of adequate
attention to civil liberties and human rights.
The third group I spoke about is the group designated by the
Department of Defense and the President as so-called enemy combatants.
That is a group my amendment deals with today.
The amendment is very straightforward with regard to these
individuals. It requires a report. It says to the Department of
Defense, the Secretary of Defense, give the appropriate committees of
the Congress a report within 90 days of the time this law becomes
effective. The report shall indicate who these people are that the
administration has designated as enemy combatants, and it shall tell us
what plans the Department has with regard to charging these individuals
with crimes, with regard to trying them for those crimes, and if there
is an intention to repatriate some of these individuals to particular
countries, to please advise us of that, but tell us something about who
these individuals are and what you intend to do with them. That is the
thrust of the amendment.
There is a proviso in the amendment that says if there is a national
security problem that the Department or the Secretary of Defense sees
in giving us any of this information, of course, that doesn't need to
be included in the unclassified version of the report. That could be
kept in a separate, classified annex and assigned whatever
classification the Secretary determines is appropriate.
The administration is holding 3 individuals today--that I am aware
of--in the United States as enemy combatants and is holding close to
700 at our military base in Guantanamo Bay, Cuba. In all cases, these
individuals are being called incommunicado. They are given no access to
counsel and no opportunity for judicial review as yet.
Let me say what I think should be obvious to everybody, and that is
that I am not advocating that these individuals be released. What I am
saying is that we should afford them the right to be charged with a
crime. Tell us what action they have taken that justifies their
incarceration, and set up some opportunity for them to be tried for
those actions. Many of these enemy combatants have been in custody by
our Government for well over 18 months--in some cases over 20 months.
President Bush announced recently--in the last 2 weeks--that 6 of the
700 or so of these enemy combatants will be tried by a military
tribunal. As far as I know, there has been no indication yet as to what
they will be tried for. There is no indication yet, or designation, or
appointment of a military tribunal or commission to do the trying of
these individuals. There has been no date set for these trials. But the
President has said that 6 of the 680 or 700 individuals are eligible--I
believe that is the phrase used by the Department of Defense and the
White House--to be tried by military tribunals.
There are serious questions about how those tribunals will function,
and I am sure there will be many debates about that. Even more serious
is a question relating to those who remain in jail, who have not--as
yet at least--been given any indication of charges, any indication of
when trials might be conducted in relation to them.
The obvious question we need to be asking--we in the Congress--since
we have an oversight responsibility over the administration, the
executive branch, is, Where does the Government or this administration
intend to go with regard to these individuals?
So far, the administration takes the position that once the President
says someone is an enemy combatant, they can keep them incarcerated,
presumably until the war on terrorism is over. But the President has
said--and I think he is probably right--this war on terrorism is of
indefinite duration; it is not a war that we can see the end of--at
least not in the near future. It appears to be the President's view and
the administration's view that these individuals can be kept as
prisoners from now on, without the administration having an obligation
to say who they are, without the administration having an obligation to
charge them with a crime, without the administration having any
obligation to afford them a hearing.
The administration takes the view that they do not come under the
Geneva Convention, but evidently they come under none of the other
procedural requirements that we have always thought applied in our
system either.
In my view, this is not a tenable position. It is not consistent with
the commitment to liberty and the rule of law on which this country was
founded. We demand that other governments show greater respect for
human rights than this, and we should be demanding better from our own
Government as well.
The amendment is very straightforward and very modest, in my view. It
simply says that the Secretary of Defense shall provide us with a
report on the status of these detainees--provide that to the relevant
committees of the Congress. Under the amendment, the report should
include the name and nationality of the individuals involved, a
statement as to whether our Government intends to charge them with some
offense, or intends to repatriate them, or intends to release them--
whatever action we intend to engage in.
There is nothing in the amendment that biases what is done with these
individuals in any way. In the case of the individuals for whom such a
determination has not been made, we ask for a description of the
process the Department of Defense is intending to follow and the
timeline for actually making a decision regarding these individuals.
Madam President, I believe strongly that we have an obligation to
require some accountability with regard to this set of individuals.
We have made provision in the amendment, as I said before, so that
the Secretary can withhold any information from any report he deems to
be information necessary to withhold for national security reasons.
The administration, in my view, needs to take some action and needs
to advise the Congress on what it is doing with these people. If the
individuals have committed crimes, let's see them charged with crimes.
If they have not committed crimes, let's see them repatriated. Let's
see some action taken. We in Congress need to understand what that
action is. That is the thrust of the amendment. I hope it will receive
broad bipartisan support.
I appreciate Senator Specter cosponsoring the amendment, as well as
the other Members I mentioned. I believe there is at least one other
Member who wishes to speak in behalf of the amendment. So I reserve the
remainder of my time.
Mr. LEAHY. Mr. President, the distinguished Senator from New Mexico,
Mr. Bingaman, has an amendment which would require the Department of
Defense to share with the relevant congressional committees information
about those who are being held as enemy combatants. I am pleased to
cosponsor this amendment.
The amendment safeguards any national security concerns by
authorizing the Secretary of Defense to provide this information in
classified form where national security requires it. It is a cautious
amendment. It does not force the administration to change the way it
designates or treats enemy combatants, but merely secures the ability
of Congress to carry out the oversight that our laws, our Constitution,
our traditions, and our practice require us to do.
Although the cases involving enemy combatants detained within the
U.S. have been well publicized, we know very little about those who are
being detained in Guantanamo Bay. Because they are held outside U.S.
territory, the courts have found they do not have the power to review
their detention. I do not doubt some of these detainees are dangerous
individuals who wish the United States harm, but doubts have been
raised on behalf of some of these detainees, and I think the Congress
should have the information necessary to make judgments about this
situation.
[[Page S9453]]
I hope this amendment will be adopted. It will make the Department of
Defense to make decisions more quickly as to whether to charge many of
the individuals it is currently holding. No one advocates haste that
will compromise ongoing intelligence gathering or hurt our national
security, but at the same time, the United States cannot be in the
position of indefinitely detaining individuals without charging them
with any wrongdoing. That is inconsistent with United States traditions
and will continue to cause us difficulty in our relations with the
nations of citizens who are being held, ranging from Pakistan to Great
Britain. It also puts us in a difficult situation when we tell other
countries not to do what we are doing.
Indeed, according to the New York Times, the President's decision to
certify two British nationals for trial before a military tribunal
created friction between our two nations, as Prime Minister Blair
arrives to address a joint meeting of Congress tomorrow.
Let me be clear, this amendment does not require any enemy combatant
to be charged, let alone released, but it does ask the Secretary of
Defense to explain where the investigatory process stands in the case
of each detainee.
Finally, I hope this amendment will encourage the administration to
make decisions about what charges he intends to bring, if any, against
Jose Padilla and Yaser Hamdi, U.S. citizens currently being held
indefinitely without charge in the United States. Their detentions have
raised grave legal questions, and it is deeply discomforting to see in
this case American citizens held indefinitely, in a legal twilight
zone, without access to counsel or those protections to which we
believe U.S. citizens are generally entitled, and also those
protections that we preach to the rest of the world we uphold and we
ask them to uphold when one of our citizens is being detained in their
country.
I yield the floor.
The PRESIDING OFFICER. The Senator from Alaska.
Mr. STEVENS. Madam President, soon after the war in Afghanistan
started, I joined with others to go with Secretary of Defense Rumsfeld
to Guantanamo Bay to assure ourselves that the Department of Defense is
complying and will comply with provisions of the Geneva Convention with
regard to the treatment of prisoners who are held at Guantanamo Bay and
other places arising from that war.
It is my understanding the individuals who are detained are those who
have participated in the battles in Afghanistan against our soldiers,
and those who are, at the request of the Department of Justice, held
for suspected terrorist activities in the United States in the war
against terrorism.
The Department of Defense does not have control over these personnel.
I believe they are really under the jurisdiction of the Department of
Justice. I do not intend to make any kind of point of order based on
legislation. I think we should just face this directly.
I think the concept of Senator Bingaman's amendment is directly
contrary to what we should be doing with regard to activities of people
who have conducted themselves as enemies of the United States in war
and those who are involved in the terrorist activities as part of the
terrorist war against the United States.
Placing a requirement that we disclose and give a schedule as
required by this Bingaman amendment is totally contrary to the best
interests of the United States. It would place an unwarranted pressure
on the administration to decide on charging and prosecuting enemy
combatants prior to completion of intelligence and law enforcement
analysis.
These people in Guantanamo Bay were held incommunicado from one
another. One of the reasons was the concept of the knowledge of who
else was detained might deter one of these people from giving us the
information we needed to find the leaders in the war on terrorism
against the United States.
The process of investigation is a very long and tedious one. These
people use different languages. We found they are using names and
declaring they are from countries that are totally untrue. The real
problem is how to deal with these people in a way to end the war in
Afghanistan and to end the war on terrorism.
It is the executive branch's authority and responsibility to conduct
the global war on terrorism. It is the executive branch's
responsibility to conduct the war in Afghanistan. For Congress to
impose a restriction on the activities that are consistent with
precedent and consistent with the manner in which similar people have
been detained over the years when we have been involved in war, such as
World War II, and the Germans came to our shores and the spies who were
intercepted throughout the world--they were held in the combatant
status. These people are in combatant status and, as such, their
treatment is subject to the Geneva Convention.
Only this basic law would impose conditions upon the right of the
administration and the Departments of the executive branch to fully
exploit the intelligence and investigative capabilities of the
detention in a combatant status in order to deal with these two
terrible scourges we face right now.
Unfortunately, the war in Afghanistan seems to be taking unfortunate
turns lately, and I hope we can meet that situation. We meet it through
information that we gather from some of these people. I am reliably
informed that some of these people, in the way they have been treated,
have divulged information to us that has led to the capture and
detention of others in a similar capacity as having been enemies of the
United States.
In short, I think it would be highly inadvisable to adopt the
Bingaman amendment, and it would have a negative impact on both the war
on terrorism and the conduct of wartime operations in Afghanistan.
There are cases pending in the courts now that this amendment, I
understand, would terminate because there are people who, through civil
rights cases, filed to determine the court's opinion as to the ``combat
status'' designation, and I do not think we should take action now as a
Congress to interrupt that process.
Madam President, does Senator Inouye wish to comment?
The PRESIDING OFFICER. The Senator from Hawaii.
Mr. INOUYE. Madam President, the committee has been advised, No. 1,
that the procedure and process employed in Guantanamo and other places
of detention meet the requirements set forth by the Geneva Convention.
No. 2, the matter is being represented by counsel and presently in
court. As our chairman indicated, it would not be appropriate for this
committee to be intervening while a court case is pending.
No. 3, I think we should keep in mind that this is not a war. This is
an experience that this Nation has not had in its past history. This is
a war on terrorism. It is not the uniformed enemy to which we are
always accustomed where we know who their commanders are, we know where
they are coming from, they wear a different type of uniform. In this
war, we have no idea who the terrorists are. It could be this young
lady here, for all I know.
Having said that, if we follow provisions of this amendment and the
Defense Department and the Department of Justice are required to give
out the names, the rank, the charges, et cetera, and to give an
indication as to when one can expect this prisoner to be released, I
think we may be working right into the hands of the organization we are
trying to combat: al-Qaida.
If I were in charge of the al-Qaida operations, I would like to know
what is happening to those below me. And if I new Mr. One is coming out
next August or Mr. Two is coming out in September, I can make plans
accordingly.
As I pointed out, this is a war that none of us have experienced in
the past. The chairman and I could speak of World War II and the Hump,
the Japanese, the Germans, the camps and such.
On this matter, we have never experienced anything like this. So I
hope as long as Guantanamo is open to inspection--and the chairman and
I have gone there. It has been always open to Members of Congress if
they wish to go there for themselves to look over the conditions, to
taste their food, and in fact talk to them to see if they are being
tortured, as some would suggest. I think my colleagues will find that
as Americans we have treated our detainees in an humane fashion.
Now, no one would want to be detained even for an hour, but in this
[[Page S9454]]
wartime condition and terrorist condition I think there is a necessity.
We have done our duty in a way that Americans need not be embarrassed
and ashamed. So I hope my colleagues will not look favorably upon this
amendment and wait for another day.
I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. BINGAMAN. How much time remains?
The PRESIDING OFFICER. The Senator has 10\1/2\ minutes.
Mr. BINGAMAN. I yield myself such time as I may consume.
Madam President, I will respond to a few of the points my colleagues
from Alaska and Hawaii made. First, I will say what this amendment does
not do. There is nothing in this amendment that restricts what action
the Department of Defense, the Department of Justice, or any other
agency of the Government is permitted to take with regard to these
enemy combatants. This is an amendment that asks for a report. It does
not say certain action has to be taken with regard to these
individuals. It says tell us the status.
Second, there is nothing in this amendment that affects court cases.
If there are court cases related to any of these enemy combatants, then
it is perfectly appropriate for the Justice Department to indicate who
the person is or which individuals are involved and say they are
subject to pending litigation, if that is the case. But the reality is,
if one is designated an enemy combatant, they are taken out of the
court system. That designation takes one out of the court system and
puts them in the custody of the military. It is the position of our
military that from that point on, one has no right to a hearing, no
right to be charged, is an enemy combatant, and accordingly they will
deal with them as they choose.
The Senator from Alaska says this is something that is probably in
the jurisdiction of the Department of Justice. I think that sort of
makes my case. These people are in nowhere land. They are in limbo.
There is an article that came out in the morning paper in my home
State in Albuquerque where there was a little report on the speech I
gave 2 days ago talking about this problem, and I will read a sentence
from that report: White House spokesman Taylor Gross referred questions
about Bingaman's speech and proposed amendment to the Justice and
Defense Departments. A Justice Department spokeswoman referred
questions to the Defense Department. A spokesman for the Defense
Department declined to comment.
The reality is, we are allowing the administration to put these
people in a category and then take the position that no rights apply to
these individuals. There is no obligation on the Department of Justice
to follow procedures with regard to these individuals. There is no
obligation on the Department of Defense.
There is nothing in my amendment that questions the treatment of
these individuals. Others have questioned the treatment of these
individuals. I have not questioned the treatment of these individuals
in Guantanamo. There is nothing in the amendment that questions the
treatment of these individuals.
Also, the point my good friend from Hawaii has made, that this would
give al-Qaida or some other terrorist organization information that
could be useful to them about when individuals might be released,
first, we have a proviso that anything the Department of Defense
determines might be contrary to national security, they should keep it
classified. They can give it any level of classification they want to
give it. If they want to say it is code level classification, they can
do that, whatever classification they think is appropriate.
Mr. DURBIN. Will the Senator yield for a question?
Mr. BINGAMAN. I am glad to yield to my colleague from Illinois.
Mr. DURBIN. I am happy to be a cosponsor of this amendment. I ask the
Senator from New Mexico--he has made the point it is still up to the
administration to decide which names and identities will remain
classified and not publicly disclosed. If there is any concern about
national security and the threat of terrorism, as I understand this
amendment, the Senator makes a clear exception so the administration
has the last word in terms of this disclosure; is that not true?
Mr. BINGAMAN. Madam President, in response to that question, let me
say that is exactly right. We have gone out of our way to make it clear
the Departments can keep secret, can keep code classification, whatever
classification level the Department decides is appropriate, any
information they think is vital to our national security. So we are
saying, as to the information that is not of that type, tell us what
can be told about who these people are and what the intent is as far as
what to do with them.
Mr. DURBIN. I ask the Senator from New Mexico, through the Chair, if
he would yield for one additional question. Is it not true historically
that when we are in the midst of a national security challenge or
crisis, and questions of civil liberties arise, that many times we do
not want to face them head on; that it is not until later in history
that we look back and say we should have asked harder questions,
questions about the suspension of civil liberties in wartime, questions
about internment camps, questions about policies that we followed?
If I understand what the Senator is seeking in this amendment, it is
to say at this point in time what we are asking for is a disclosure of
those people who have been detained and arrested and are in special
status, whose rights at least may be compromised because of our concern
about national security; and that disclosure is all that this amendment
is about, giving the administration the last word and determination as
to which names might be held back and not disclosed because of security
concerns.
Mr. BINGAMAN. Madam President, in response to that follow-on
question, that is exactly correct. The Senator from Illinois is exactly
right in pointing out that in what we are trying to do, we are not--
this is not an amendment I am offering 6 weeks after the 9/11 tragedy.
This is an amendment I am offering 20 months or more after the 9/11
tragedy. We know that many of these individuals have been there well
over a year and a half. It is time that we in Congress exercise our
oversight responsibility and say: Who are they? What are they intending
to be charged with? I do not anticipate that these are individuals we
are going to some day say we have decided to release. I assume that we
have them there for good reason, and that we are going to prosecute
them and that we are going to find them guilty. That is my assumption,
assuming the system works as it is intended to work.
So my thought is, let's get some idea of where we are going so that
we begin to build in some accountability and begin to recognize what we
historically have recognized, and that is that there are certain legal
protections that apply if one is jailed by the United States
Government. There are certain legal rights that we will be afforded.
Mr. DURBIN. I ask the Senator from New Mexico if--I do not know how
much time he has remaining, Madam President.
The PRESIDING OFFICER. There are 3 minutes 15 seconds remaining.
Mr. DURBIN. If I might ask the Senator from New Mexico this question:
What is at issue in his amendment, if I am not mistaken, is whether we
are going to afford any form of due process to these detainees. Is it
not also true that we have to look beyond these detainees to how we as
Americans would be treated in other countries, whether we are
establishing a standard which we could live by?
In other words, I am asking the Senator from New Mexico if we believe
that we can detain individuals, without disclosure of who they are, and
the circumstances of their detention, does that not invite the same
conduct against Americans or service men and women overseas and give
the United States little or no room to complain?
I ask the Senator from New Mexico if he is not asking for us to stand
up for some basic elements of due process which we would ask to be
afforded to Americans in similar situations.
Mr. BINGAMAN. In response to the question, I think the Senator from
Illinois makes a very good point. If we are going to proclaim our
commitment to liberty and to freedom as we always have, and as I
certainly want to be able to do, and if we are going to insist that
U.S. citizens, when they are captured
[[Page S9455]]
in overseas incidents, whether they be military or civilian, that they
be given some reasonable treatment through the court systems of those
countries, then we have to have some adherence to reasonable legal
process for these individuals that we have incarcerated. That is all I
am asking. Tell us what we are going to do. If they come back and say
we are not going to do anything, then we can see whether a follow-on
amendment or follow-on action is appropriate.
This amendment simply says, give us a report. Tell us the status of
these individuals; tell us your plans with regard to these individuals;
or give us some idea whether or not you are going to charge them. If
you are going to charge them with something, tell us what you might
charge them with. If you decide to make that decision later on, tell us
when you might decide to make that decision.
It is the most modest of amendments. I hope very much it will be
supported by my colleagues on a bipartisan basis.
How much time remains?
The PRESIDING OFFICER. The Senator has 53 seconds.
Mr. BINGAMAN. I retain that and I yield the floor.
Mr. STEVENS. Madam President, for the information of the Senate, the
Intelligence Committee has access to information about enemy combatants
who are being detained, including names the Red Cross is fully engaged
with in the continuing meaningful access to detainees.
This Congress was briefed about the creation of the military
tribunals and the handling of detainees. The tribunals were created by
Executive order. That was published in the Federal Register. It has
been a matter of public record for some time.
Any detainees brought before military tribunals have full access to
military and, at their request, civilian counsel. We are talking now
about the requirement to publish, to release these names. By the way,
they have been released, in effect, in classified form, but with the
intervention of our Intelligence Committee, which is the oversight
committee for this body in regard to information such as this.
I cannot believe we would be faced on an appropriations bill with a
matter of this kind. It does not get into money, but it does deal with
something the Department of Defense has connection with. It is relevant
and therefore we must deal with it.
However, the broad release of the names of these individuals, even in
classified form, could compromise our ability to access information
which could prevent more terrorist attacks, could prevent more attacks
on our military in Afghanistan. This is a military problem in that
sense. That is why the Department of Defense is involved. It is the
Department of Justice's sense in terms of deciding how they are
prosecuted. If they are prosecuted in civilian courts is another
matter. Then they would be fully accounted for in the public sector. If
the prosecutor in the tribunals--the tribunals themselves can be
closed, if that is the decision. The person would still have the right
to counsel and a right to be tried before the tribunal, but we would
not necessarily have public access to that trial because of the
information involved.
If people want to go to Guantanamo and know who is there, go there.
We went there. I don't understand why we should take this action now.
By the way, the Senator is not quite correct; it not only says the
names and the nationality but also whether they are to be charged,
repatriated, a statement of what procedure is going to be followed to
determine whether they are charged or repatriated. That is intelligence
information. And with respect to such individuals in the United States,
intention to charge, a schedule for the filing of the charge and the
date for the trial. If it is a military tribunal, it could well be
classified. To require the determination now of what would be done--it
is true there is an exclusion here; the Secretary can omit. But if he
omitted one or more individuals, then he would include in the report an
explanation of the mission of the individual or individuals. It could
include a classified index. If it could include a classified index, why
should it be published? We do not publish a classified index.
The term ``enemy combatant'' means an individual held under the
authority of military order of November 13, 2001, as published in the
Federal Register, or an individual designated as an enemy combatant and
held under other legal authorities. In both instances, they have
quality access to courts that protect their rights. Other people are
pursuing those cases.
The interrogation process of people like this is ongoing and very
timely. It does not lend itself to detailed plans, firm dates, and firm
schedules. We saw some of that when we were in Guantanamo, but the
interrogation efforts in many ways require somehow to get through to an
individual who has lied to us about who the person is, where they are
from, and refused to give any data at all concerning their own
background. They were captured under wartime conditions.
This amendment is an attempt to poke Congress' nose under a tent,
that we belong only if we are in an unclassified area. That is what the
Intelligence Committee has already done. I am reliably informed the
Intelligence Committee has access to information about these enemy
combatants in detention, including their names. If they started
releasing the names of these individuals, even in classified form, it
could compromise sources and methods of their acquisition and
compromise the possibility of gaining information on them that might
prevent further terrorist activities.
If the Senator wishes further time, I will be glad to not yield back
my time but I intend to yield back the time and move to table.
Mr. BINGAMAN. I appreciate the courtesy. I will use my remaining 50
seconds.
The PRESIDING OFFICER. Forty-five seconds.
Mr. BINGAMAN. Madam President, first of all, if the Secretary of
Defense believes the release of any of these names compromises our
national security, he is given full reign to keep that information
classified at any level of classification he decides is appropriate. So
we are not in any way interfering with national security.
In my view, it is not appropriate for us to say, look, if you want to
check on them, get on a plane and go down to Guantanamo. We and the
American people need to be persuaded there is some adequate due process
and legal process being followed.
Regarding the idea of these military tribunals, there have been no
tribunals established. The President said 6 individuals out of the
nearly 700 are eligible to be considered or to be tried by military
tribunals. There are no military tribunals established.
I urge support for the amendment and I yield the floor.
Mr. STEVENS. Madam President, I yield back the remainder of my time.
Before that, I ask unanimous consent that the second and third votes
in this stack of three votes be limited to 10 minutes each.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. STEVENS. I yield back the remainder of my time, I move to table
the Senator's amendment, and I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. STEVENS. The first vote will be on tabling the Dorgan amendment;
the second vote will be on the Bingaman amendment; and the third vote
will be on Burma.
The PRESIDING OFFICER. That is correct.
[...]
The PRESIDING OFFICER (Mr. Hagel). Under the previous order, there
are now 2 minutes equally divided prior to a vote on the motion to
table the Bingaman amendment.
Who yields time?
The Senator from New Mexico.
Mr. BINGAMAN. Mr. President, this is a very straightforward amendment
which just requires a report from the Secretary of Defense on those
people we are incarcerating under the status of ``enemy combatant'' and
what our intentions are with regard to charging them or making a
decision on charging them.
We have a proviso in there that if the release of any of this
information will jeopardize national security, the Secretary can
withhold that and put it in a classified annex and give it any level of
classification the Secretary determines is appropriate.
So it seems to me essential that the Congress exercise some oversight
of this process. If we are going to be a nation that stands for liberty
and freedom and legal process, then we ought to ensure that everyone
who has been taken into custody in our country be afforded some legal
protection. There are no military tribunals that have been established.
The problem is not resolved. We should ask for this report.
The PRESIDING OFFICER. The Senator from Alaska.
Mr. STEVENS. Mr. President, these people are being held consistent
with the Geneva Convention. The Intelligence Committee of the Senate
has access to names and information concerning those who are detained.
The Red Cross is fully engaged and has meaningful access to the
detainees. We need to have the interrogation process continue so that
we can see if we can get information from these people that might lead
to us having the ability to prevent further terrorist attacks against
the United States.
They are enemy combatants. There is fully published, in the Federal
Register, the procedure under which they will be handled. This
amendment, as a matter of law, forces the disclosure and a plan of when
they are to be released. It is contrary to the best interests of
national security, in my opinion. I made a motion to table and I urge
its support.
The PRESIDING OFFICER. All time has expired.
The question now occurs on agreeing to the motion to table amendment
No. 1268. This will be a 10-minute vote. The yeas and nays have been
ordered. The clerk will call the roll.
The legislative clerk called the roll.
Mr. McCONNELL. I announce that the Senator from New Hampshire (Mr.
Sununu) is necessarily absent.
Mr. REID. I announce that the Senator from North Carolina (Mr.
Edwards), the Senator from Florida (Mr. Graham), the Senator from
Massachusetts (Mr. Kerry), the Senator from Connecticut (Mr.
Lieberman), and the Senator from Georgia (Mr. Miller) are necessarily
absent.
I further announce that, if present and voting, the Senator from
Massachusetts (Mr. Kerry) would vote ``nay''.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 52, nays 42, as follows:
[Rollcall Vote No. 279 Leg.]
YEAS--52
Alexander
Allard
Allen
Bayh
Bennett
Bond
Brownback
Bunning
Burns
Campbell
Chafee
Chambliss
Cochran
Coleman
Collins
Cornyn
Craig
Crapo
DeWine
Dole
Domenici
Ensign
Enzi
Fitzgerald
Frist
Graham (SC)
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Inouye
Kyl
Lott
Lugar
McCain
McConnell
Murkowski
Nickles
Roberts
Santorum
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Talent
Thomas
Voinovich
Warner
NAYS--42
Akaka
Baucus
Biden
Bingaman
Boxer
Breaux
Byrd
Cantwell
Carper
Clinton
Conrad
Corzine
Daschle
Dayton
Dodd
Dorgan
Durbin
Feingold
Feinstein
Harkin
Hollings
Jeffords
Johnson
Kennedy
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lincoln
Mikulski
Murray
Nelson (FL)
Nelson (NE)
Pryor
Reed
Reid
Rockefeller
Sarbanes
Schumer
Stabenow
Wyden
NOT VOTING--6
Edwards
Graham (FL)
Kerry
Lieberman
Miller
Sununu
The motion was agreed to.
Mr. STEVENS. Mr. President, I move to reconsider the vote.
Mr. INOUYE. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
[...]